#8859 - Actual Causation - Tort Law

Actual Causation

1. But-for Causation

When a plaintiff’s harm would have occurred even if the defendant had not acted negligently, then the defendant’s negligent conduct did not “legally” cause the plaintiff’s harm.

Defendant’s negligent conduct must be a “but for” cause of the plaintiff’s harm.

Plaintiff must establish that “more probably than not” the defendants conduct was the “but for” cause of harm.

Higher degree of fault, more likely the court will let thin causation evidence go to jury.

2. Special Problems of Proof: Was the D’s Conduct Capable of Causing the P’s Harm?

Focus on quality of plaintiff’s technical proof of defendant’s conduct actually causing the harm.

Did D’s conduct have anything to do with the harm?

Most cases involve expert testimony to boost technical quality of evidence.

Frye Test-(bout 12 still use)

Courts using Frye must determine if the method by which evidence was obtained was generally accepted by experts “in the particular field in which it belongs”. If not, then not admissible.

Daubert Test- (med malpractice)(most common)(20 states adopted)

Courts using Daubert- “general acceptance” not necessary precondition to the admissibility of scientific evidence under Fed Rule of Evid.

Inquiry must be solely on principles, and methodology, not on the conclusions they generate. Look at if:

1. Theory in question can be (had or has been) tested

2. Subjected to peer review-publication

3. Known or potential error rate

4. Existence and Maintenance of Standards Controlling its operation

5. Whether has attracted widespread acceptance in relevant scientific community.

For Toxic Agent Cases, for plaintiff to prevail, must establish “general causation” with proof that toxic agent increased the risk of harm.

“as long as evidence of increased risk exists a court may use other evidence to prove that the plaintiff before the court suffered from exposure to the risk”.

Still must show that “more-likely than not” the harm was caused by the defendant’s product or conduct.

Loss-of-chance or Increased Risk of Harm-

Minority of courts refuse to allow recovery for loss-of-chance unless plaintiff can establish causation under the traditional negligence standard.

Plaintiff must show d’s failure to diagnose or treat did, more-likely than not, cause the plaintiff’s harm.

Most courts allow loss-of-chance to reach jury even when plaintiff cannot prove the defendant was more likely than not, the cause of the plaintiffs harm.

LOSS OF CHANCE has not been extended beyond medical malpractice.

3. When 2 (or more) Negligent Actors Concurrently (or successively) cause the plaintiff’s harm

1. Indivisible Harm

Negligent conduct of either actor would not, without the other, have caused the accident in which plaintiff suffered harm.

Each is held liable for the entire result not just for their individual parts.

2. Joint and Severable Liability

Defendants who are jointly liable can be joined in a single action, but plaintiff is not required to join them.

Defendants who are severally liable are each liable in full for the plaintiff’s damages, although plaintiff is entitled to only one total recovery.

At common law this arises when either:

Each defendant acted in concert w/ the other to cause the harm (all actors liable for harm actually caused by only one)

Or

Each defendant acted independently but caused indivisible harm (both liable where can’t allocate harm to either defendant’s conduct)

Restatement 3^rd §27 Multiple Sufficient Causes

If multiple acts exist, each of which alone would have been a factual cause under §26 of the physical harm at the same time, each act is regarded as a factual cause of the harm.

Where 2 responsible human agencies negligently cause plaintiff’s harm, the actors are jointly and severally liable.

4. When one of Several Negligent Actors Clearly Harmed the Plaintiff, But we Can’t Tell Which One

Both are held liable, or the burden shifts to the defense to prove that the other is actually liable. (Summers v. Tice, defendants both shot plaintiff but not sure which bullet caused the harm).

For med malpractice suits, a common approach for damages & liability is to determine the market share approach used in DES (miscarriage drug)

Even in jurisdictions...